California OAH special education order · October 8, 2021
Order Denying Request for Continuance
OAH Case No. 2021030090 · ALJ Paul H. Kamoroff
OAH denied Long Beach's last-minute continuance request over witness scheduling. The case had been pending for months, and the prehearing order already required the District to have its witnesses available.
This case went to decision
Student v. Long Beach Unified School District: Long Beach Unified must reimburse $14,937 for private reading instruction after failing to address autistic student's reading; five claims denied. (2021)
Summary
Four days before hearing, Long Beach asked OAH to continue the case. It said Student's delay in meeting and conferring left it unable to schedule witnesses. OAH acknowledged that scheduling witnesses is difficult but found no good cause, because the matter had been pending since May 2021 (amended August 2021) and the prehearing conference order already required Long Beach to have its witnesses available if no agreement was reached. All hearing dates were confirmed, and OAH ruled that if Student fails to meet and confer or agree on scheduling, Long Beach is responsible only for scheduling its own witnesses.
Why it matters
Continuances are disfavored, and a party cannot rely on short-term scheduling problems when it has known the issues and needed witnesses for months. Districts should line up witnesses early rather than waiting on the meet-and-confer process.
Key authority cited
- 34 C.F.R. § 300.515(a), (c)
- Ed. Code § 56502, subd. (f)
- Ed. Code § 56505, subd. (f)(3)
- Cal. Code Regs., tit. 1, § 1020
- Cal. Rules of Court, rule 3.1332(c), (d)
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
IN THE MATTER OF:
PARENTS ON BEHALF OF STUDENT,
v.
LONG BEACH UNIFIED SCHOOL DISTRICT.
OAH CASE NUMBER 2021030090
ORDER DENYING REQUEST FOR CONTINUANCE
OCTOBER 08, 2021
On October 8, 2021, Long Beach Unified School District filed with the Office of Administrative Hearings, called OAH, a request to continue this matter, based upon Student’s delay in meeting and conferring regarding the scheduling of witnesses.
A due process hearing must be conducted and a decision rendered within 45 days of receipt of the due process notice unless an extension is granted for good cause. (34 C.F.R. § 300.515(a) & (c) (2006); Ed. Code, §§ 56502, subd. (f), 56505, subd. (f)(3); Cal. Code Regs., tit. 1, § 1020.) As a result, continuances are disfavored.
Good cause may include the unavailability of a party, counsel, or an essential witness due to death, illness or other excusable circumstances; substitution of an attorney when the substitution is required in the interests of justice; a party’s excused inability to obtain essential testimony or other material evidence despite diligent efforts; or another significant, unanticipated change in the status of the case as a result of which the case is not ready for hearing. (Ed. Code, § 56505, subd. (f)(3); Cal. Rules of Court, rule 3.1332(c).)
OAH considers all relevant facts and circumstances, including the proximity of the hearing date; previous continuances or delays; the length of continuance requested; the availability of other means to address the problem giving rise to the request; prejudice to a party or witness as a result of a continuance; the impact of granting a continuance on other pending hearings; whether trial counsel is engaged in another trial; whether the parties have stipulated to a continuance; whether the interests of justice are served by the continuance or imposing conditions on the continuance; and any other relevant fact or circumstance. (Cal. Rules of Court, rule 3.1332(d).)
Here, during a prehearing conference on October 4, 2021, OAH ordered the parties to meet and confer by October 7, 2021, to discuss scheduling witnesses, issues related to appearances by videoconference for hearing, eliminating duplicative exhibits, subpoenas, and whether they can stipulate to facts or evidence to shorten the length of time needed for the hearing. On October 7, 2021, OAH granted Student’s request to extend the time to meet and confer to 2:00 pm on October 8, 2021.
Long Beach’s motion asserts it is unable to schedule witnesses for the hearing because of the short time between the meet and confer and the hearing, set to begin on October 12, 2021. There is some merit to Long Beach’s motion and OAH acknowledges the difficulty of scheduling witnesses for a hearing. However, this matter has been pending since May 2, 2021, as amended on August 12, 2021. Therefore, Long Beach has been aware of the issues alleged in this matter and the nature of the witness testimony necessary to analyze these claims for some time. Moreover, the prehearing conference order states that, in the event an agreement cannot be reached regarding the scheduling of witnesses, Long Beach shall have witnesses available.
For these reasons, Long Beach failed to establish good cause for a continuance and its request is denied.
ORDER
1. Long Beach’s request for a continuance is Denied. All hearing dates are
confirmed and shall proceed as calendared.
2. Should Student fail to meet and confer or to reach an agreement with
Long Beach regarding the scheduling of witnesses, Long Beach shall only be responsible for scheduling its own witnesses for this matter.
IT IS SO ORDERED.
Paul H. Kamoroff Paul H Kamoroff Administrative Law Judge Office of Administrative Hearings